On Dec. 18, 2024, U.S. Citizenship and Immigration Services (USCIS) published a final rule to modernize the H-1B visa program. The H-1B visa program is a U.S. immigration program that allows U.S. employers to hire foreign workers in specialty occupations that require at least a bachelor’s degree or equivalent in a specific field. The H-1B modernization rule aims to improve the program’s efficiency, add flexibility, and enhance integrity measures. While most changes focus on H-1B specialty occupation workers, the rule also includes provisions affecting other nonimmigrant visa categories, such as H-2, H-3, F-1, L-1, O, P, Q-1, R-1, E-3, and TN.

Highlights of the updated H-1B modernization rule include:

Specialty Occupation: The rule revises the “specialty occupation” definition, removing references to general degrees like “business administration” or “liberal arts” and focusing on the beneficiary’s actual course of study rather than the degree title. A position can only qualify as a specialty occupation if it requires highly specialized knowledge and a bachelor’s degree (or its equivalent) in a directly related specialty. “Directly related” means a logical connection between the degree and the job duties.

The rule also clarifies that if a petitioner claims a bachelor’s degree in a specific specialty is “normally” required, they don’t need to prove it’s always the minimum requirement. “Normal” is defined as “typical” or “routine.” If multiple degree fields are acceptable, the petitioner must demonstrate that each field is directly related to the job’s duties, showing how the degree provides the necessary specialized knowledge. The burden is on the petitioner to establish this connection.

Definition of Employment and Third Party: The rule revises the definition of a “U.S. employer,” eliminating the employer-employee relationship requirement and replacing it with the need for a bona fide job offer, including telework or remote work within the U.S. The definition now includes organizations with a legal presence in the U.S., service of process capability, and a U.S. Tax ID, allowing owner-beneficiaries to petition for themselves.

The rule also eliminates the itinerary requirement, no longer requiring specific day-to-day assignments for the entire validity period. Petitioners must only demonstrate that the position will exist by the start date.

If a beneficiary is “staffed” to a third party, USCIS will assess whether the position qualifies as a specialty occupation based on the third party’s requirements rather than the petitioner’s. “Staffed” means the beneficiary is part of the third party’s organizational structure and will not be providing services or working on discrete projects for the third party.

Additionally, the rule formalizes the requirement for contracts, statements of work, and client letters to confirm the bona fide nature of job offers in third-party work locations. USCIS may also request supporting documentation to verify the legitimacy of the job and its educational requirements.

H-1B Cap Exemption: The rule changes the requirement for nonprofit and governmental research organizations to qualify for cap exemptions. Instead of being “primarily engaged” in research, the rule states that research must be a “fundamental activity” of the organization. Additionally, it clarifies that work performed “at” a qualifying institution can include telework or remote work, and USCIS will focus on the job duties performed, not the physical location of the work.

H-1B Cap Gap: Under the rule, the H-1B Cap-Gap extension, filed on behalf of an F-1 visa student, may run to April 1 of the following calendar year, providing up to twelve months of lawful status and work authorization. The prior regulation allowed H-1B Cap Gap extensions for up to six months.

H-1B Validity Period: The rule allows USCIS to request a new Labor Condition Application (LCA) if an H-1B petition is approved for a longer period than initially requested. The proffered wage cannot be lowered, but an increase is allowed without being considered a material change. If no changes or response to the request are made, the petition will be approved for the original period, but no status changes or consular processing will occur.

Deference: The rule formalizes USCIS’s policy to defer to previous decisions unless there is a material error, change, or new information affecting eligibility. The petitioner must still provide evidence, and the policy applies to all petitions using Form I-129.

Site Visits: The rule expands USCIS’s authority for site inspections. USCIS can now conduct site visits at the petitioner’s worksite, neutral locations, and any other places where H-1B work is performed, including third-party customer locations. The rule also allows inspections at the private residence of an H-1B beneficiary if remote work is being performed from home. If USCIS cannot verify the facts due to non-cooperation from the petitioner or a third party, it has the authority to deny or revoke any H-1B petition for workers at these locations.

Employers seeking to obtain advice pertaining to the new H-1B modernization rule should contact the Taft Immigration team for further details.